OLYMPIA, July 21.—Last year Gov. Christine Gregoire raised eyebrows when she took a climate-change bill that had failed in the state Legislature and enacted a more limited version on her own — by transforming it into an executive order. How could she do that? The Evergreen Freedom Foundation, a free-market think-tank based in Olympia, says she couldn’t, and in a new lawsuit it is asking the courts to toss the order out. The order went where lawmakers were unwilling to tread. Gregoire was the biggest backer of the measure in the 2009 Legislature, which directed state agencies to make greenhouse-gas reductions one of Washington’s top official priorities. When the Legislature balked, she followed it with an executive order to state agencies that she said accomplished the same thing and then some. All of which raised the question – why did she need to go to the Legislature in the first place? And what are the powers of the governor?

The governor’s office maintains that it acted properly. But the Evergreen Freedom Foundation, a think tank with an aggressive legal program, says the governor’s office overstepped its bounds.

“The governor has authority to direct agency heads to take specific actions, but when taking on a new program, you’re talking about something the governor needs authorization to do,” said Michael Reitz, general counsel for the organization.

Normally executive orders provide direction for state agencies in implementing legislation, he said. But there wasn’t any legislation behind this one. It moved the state in a new direction, he said – and that’s the job of the Legislature.

Order Was Very Specific

Last year’s executive order directed the state departments of Ecology and Transportation to take action to reduce greenhouse gas emissions, and it did everything short of enacting a state level “cap-and-trade” program. Ecology was directed to develop standards that might be used in a possible federal program, or by a state program if the feds didn’t come through. It also directed Ecology to begin contacting big polluters, to inform them of the state’s expectations, and to “request” them to take action.

Among other things, it was directed to develop specific standards for the forest and wood-product industry and for the coal-fired TransAlta plant in Centralia, the state’s largest polluter. The department also was directed to evaluate California fuel standards and recommend whether they should be adopted by Washington state.

The order also contained a lengthy list of specific instructions to Transportation and Ecology aimed at making emissions reductions a top priority in state and regional planning processes. That’s of particular importance in matters like road construction. And it laid the groundwork for rules that would be imposed on state agencies for use of zero-emission vehicles.

Replaced Failed Legislation

The idea behind the order was that it would do the same job as SB 5735 – a measure introduced at the request of the governor’s office during the 2009 legislative session, but which lawmakers rejected after heavy opposition from worried business organizations. The complaint quotes from a confidential briefing document written by then-Ecology director Jay Manning and Keith Phillips. They laid out the government impacts directly: “With the Legislature’s failure to pass your climate-change bill, you directed us to prepare an executive order that accomplishes what the bill would have authorized and more.”

They also said the executive order did the trick: “The majority of the EO provisions track your climate bill,” they wrote.

The governor herself explained the order in exactly those terms. At a news conference May 21, 2009, the governor stated, “What we’ve done in the executive order is everything that was in that final bill – plus. Plus. There’s more in the executive order than what was in the final bill that did not pass the Legislature.”

A Constitutional Issue

In its lawsuit, the Evergreen Freedom Foundation says the case is a matter of separation of powers. Governors can issue executive orders for a variety of reasons, but unless the Legislature or the state constitution gives them the authority, they can’t create obligations or responsibilities that have the effect of law. The suit points out that the order directs state agencies, local governments, planning councils, businesses and others to take specific actions. But nothing in the lawbooks gives the governor that power.

The state attorney general’s office has been forced to weigh in on the matter, as a result of normal legal processes. As a precursor to the lawsuit, Evergreen Freedom Foundation petitioned the attorney general’s office, asking that it take action to invalidate the executive order. The attorney general’s office declined to take action.

Reitz said the lawsuit is a reflection of frustrations many feel nationwide as government appears to overstep its legal authority. “This is really a microcosm of the frustrations people are feeling nationally. We have the rule of law and we have established the legislative process for a reason.”

Meanwhile, the view from the governor’s office is that the Evergreen Freedom Foundation doesn’t have a leg to stand on. Of course the governor’s office has the ability to provide direction to state agencies, said spokesman Viet Shelton. “At first blush, it’s a little interesting that an organization that tends to describe itself as a champion for taxpayer spending would file a frivolous lawsuit,” he said. Taxpayers will wind up having to pay to defend against it.